In Depth

Indianapolis attorney and blogger Paul Ogden should receive a one-year suspension for email criticisms of a judge, the hearing
officer in his disciplinary case has recommended to the Indiana Supreme Court. Ogden shows no sign of relenting in a matter
he says is about attorneys’ free speech.

The recommendation issued Dec. 30 in hearing officer Robert W. York’s report aligns with those of
the Supreme Court Disciplinary Commission. The Indiana Supreme Court ultimately will decide what sanction, if any, Ogden receives.

“Had (Ogden) exhibited even the slightest remorse for his misconduct, cooperated fully in the prompt resolution of
this matter and shown that he had the proper insight and judgment required of Indiana attorneys, the hearing officer would
have recommended a less severe sanction,” York wrote.

Indianapolis attorney and blogger Paul Ogden steps from the hearing room in July 2013 during a break
in his hearing before the Indiana Supreme Court Disciplinary Commission. Ogden’s disciplinary case has gained national
attention regarding attorney free speech. (IL file photo)

“In light of his continuing insistence that he did nothing wrong, the hearing officer has grave concerns that similar
misconduct could be repeated in the future,” he wrote in the 85-page filing.

Ogden is accused of violating Admission and Discipline Rule 8.2(a) that prohibits attorneys from making statements known
to be false or with reckless disregard as to truth or falsity concerning the qualifications and integrity of a judge.

The charge stems from private emails Ogden sent regarding Hendricks Superior Judge David Coleman’s handling of an estate
case in which Ogden had Coleman removed under a lazy-judge motion. Among other things, Ogden said Coleman should have been
reported to disciplinary authorities for his handling of the case.

“As a result of the statements made by (Ogden) about Judge Coleman, which statements were false or made with reckless
disregard for truth, (Ogden) caused serious injury to the public, Judge Coleman, the judicial system and the legal profession,”
York wrote.

York said in his report that he “cannot stress enough the conclusion that (Ogden) has a profound lack of both insight
into his own conduct and lack of respect for those who disagree with him.”

Ogden’s attorney, Adam Lenkowsky, said Thursday that Ogden will petition the Indiana Supreme Court to review York’s
recommendation. He said York’s filing was flawed in several respects and that York’s recommendation of an elevated
sanction for Ogden’s “lack of insight” was punishment for defending himself before the commission.

“When he tried to prove that the Disciplinary Commission had a bias, the first thing they did was try to quash his
subpoenas,” Lenkowsky said in a statement.

Ogden also may pursue a First Amendment appeal to the Supreme Court of the United States. Lenkowsy said the court hasn’t
taken such a case for about 20 years. “I think there’s a relatively good chance they will accept an attorney First
Amendment case,” he said.

“The (U.S.) Supreme Court has never determined whether New York Times v. Sullivan applies to attorney discipline
cases,” he said. Lenkowsky said attorneys shouldn’t be punished for speech protected under that landmark case
unless it could affect the outcome of a case.

Ogden’s disciplinary case has gained national attention, and constitutional law experts including Jonathan Turley have
expressed alarm about the application of Rule 8.2.

York grilled Ogden during his 12-hour Disciplinary Commission hearing in July. “Do any of these
rules apply to you?” York asked Ogden at one point, holding up a copy of the professional conduct code. Seeming exasperated,
Ogden said they did, but they “can’t be used to infringe my free speech.”

Ogden on Thursday said he was surprised by the recommended sanction, but that he doesn’t believe he has anything to
be sorry about.

“I simply will not agree to give up my free speech rights simply because I’m an attorney,” Ogden said.
“I have the same free-speech right to criticize a judge as any citizen.”

York found otherwise.

“Attorneys have the right of free speech but must exercise such right in recognition that they have a privilege, not
a right, to represent clients and argue matters in our courts and in doing so they act as officers of the court charged with
promoting public trust in our judicial system and in the judiciary,” he wrote.

“While critical speech of public officials, including judges, gives the public necessary information about their government,
false or reckless statements by attorneys about judges or the judiciary serves only to destroy such trust. Therefore, unlike
private citizens, the rights of an attorney to speak as he or she may choose must be limited by their required responsibilities
to our system of jurisprudence.”

York cited a recent disciplinary case to outline the commission’s response to Ogden’s free-speech claim and perhaps
illuminate its view of the rule.

“The Commission contends that when a lawyer makes a statement concerning the lack of integrity or qualifications of
a judge in reckless disregard of whether the statements are true or false, there is no Constitutional protection and relies
upon the ‘objective’ standard specifically adopted by the Indiana Supreme Court on October 8, 2013, in the case
of In re Dixon, 994 N.E.2d 1129 (Ind. 2013), and applied by implication to decisions preceding In Re Dixon.
The objective standard requires proof that when Respondent made a statement, he lacked any objectively reasonable basis for
making the statement, considering its nature and the context in which the statement was made.”

In the Thomas Dixon case, the lawyer was cleared of charges he violated Rule 8.2(a) by arguing that a judge’s
bias warranted her recusal in a case involving pro-life students arrested for protesting the announcement of President Barack
Obama’s appearance at the University of Notre Dame.

Justices ruled the statements in the Dixon case weren’t violations considering the entire context in which they were
made, and based on supporting facts. Justice Robert Rucker dissented and would have sanctioned Dixon.

Ogden also is charged with violating rule 8.4(a), for engaging in conduct prejudicial to the administration of justice for
sending unsolicited letters to Marion Superior judges advising them of an Indiana Supreme Court ruling regarding distribution
of proceeds in asset-forfeiture cases.

York recommends no sanction for that charge.

ADVERTISEMENT

Conversations

10 Comments

So is the one year suspension without automatic restatement (i.e. career death) a plan to silence one of the very few voices
courageous enough to tell Statists that they are naked? "Real patriotism is a willingness to challenge the government when
it's wrong." Ron Paul ... If that be the case, then the antidote must be a collective, concerted and relentless call for investigations
into the misuse of governmental authority. "The original American patriots were those individuals brave enough to resist ...
the oppressive power of King George...Patriotism is more closely linked to dissent than it is to conformity and a blind desire
for safety and security.” Ron Paul again. There are more than enough legal careers swinging from ropes to justify a look into
how decisions to target are being made. Merely look to the Obama admin to see that American governance is not immune from
ideological pollutants.

Mark, it's actually much worse than that. Judge Coleman wrote a letter to the Commission (but did not file a grievance) complaining
about my emails criticizing him in the early Fall of 2010. The Commission did nothing with it until I wrote an article the
next year on my blog criticizing the Commission for focusing disciplinary actions on small firm attorneys and sole practitioners
(397 out of 400 over a three year period I looked at) and asked for an investigation of the Commission. It was only then that
Michael Witte, Executive Secretary of the Commission, went back to the Coleman letter and filed a grievance against me based
on the emails. In the sanction brief, the Commission openly admits that one of the reasons the Commission is pushing for a
one year suspension is because I have been publicly critical of the Commission.

Mark, KGB you ask? Imagine the reign of terror that could be initiated under rules that place state agents beyond the reach
of the law, as well as their ideologically driven informants? Here today for law applicants, coming soon, if the political
correctness movement has its way, for all others. Consider this: Rule 20. Immunity Section 1. Persons Providing Information
to the State Board of Law Examiners. Every person or entity shall be immune from civil liability for providing, in good faith,
documents, statements of opinion, records, or other information regarding an applicant or potential applicant for admission
to the bar of this State to the State Board of Law Examiners; to its officers, Executive Director, staff, employees or agents;
or to the Committees on Character and Fitness and their members and agents. Section 2. Immunity for Board, Staff and Character
and Fitness Committee. The State Board of Law Examiners and its officers, members, Executive Director, staff, employees and
agents, and the Committees on Character and Fitness and their members and agents, are immune from all civil liability for
acts performed in the course of their official duties relating to the examination, character and fitness qualification, and
licensing of persons seeking to be admitted to the practice of law.

He sends a private email to his client that is critical of Judge Coleman (a valid criticism btw - he was removed from the
case), and it somehow finds its way to the judge's attention. How has he "caused serious injury to the public, Judge Coleman,
the judicial system and the legal profession"? He did not make his comments public. The DC did. Make no mistake, this is a
punitive action by a vindictive group of people to chill attorneys' right to free speech, pure and simple. What's next? Hiding
in the bushes? Tapping everyone's phone? I believe the KGB uses the same tactics to keep people in line.

If only the DC had been so proactive and involved when complaints against Conour from fellow attorneys and clients were received
over the years. In the Conour case it was very tangible harm visited upon those who could not help themselves, many under
disabilities. An investigation into the Conour mishandling is yet in order. And so is mercy for Paul, who was understandably
troubled by a process that drug on far too long and that would have seemed unjust on its face given the sibling situation
and rumours swirling about. One year out of the profession seems quite draconian for private correspondence -- he did not
post his views on his website prior to the disciplinary action ... albeit I was given five years out via a written opinion
bereft of any controlling law or analysis closely approaching that done in this instance.

Ridiculous recommendation by hearing officer. The disciplinary process for lawyers is bleeding out its legitimacy on this
persecution and a handful of others. Its also bad for the public good, since the DC is a needed body yet which is regrettably
wasting its powder on silencing lawyer dissent and burnishing judge reputations instead of policing really bad and criminal
lawyer misconduct that truly hurts the public. -- Keep up the good fight Paul!

The trust of the informed public is harmed far more by this over reaching decision than the extremely minor offense. The public
trust is a product of transparency and appropriate conduct. This decision is a failure of both. Apparently the goal is not
to protect the judge, the public or the system but to act as punatively as possible hoping it does not blow up in their face.
I sincerely hope that calculation is wrong.

Once again the disciplinary commission shows they are more concerned about enforcing respect for their own authority than
the rights and responsibilities of others. Do we really want a policy that prohibits attorneys from expressing candid opinions
in private communications? Do we really want to place judges beyond even private criticism by professional peers?

“As a result of the statements made by (Ogden) about Judge Coleman, which statements were false or made with reckless disregard
for truth, (Ogden) caused serious injury to the public, Judge Coleman, the judicial system and the legal profession,” York
wrote." . Not sure how I accomplished all that in a private email that was sent only to case participants. Then again, maybe
the person who made my private criticism of a judge public may have arguably done that and could be pursued under Rule 8.2.
That person would be Michael Witte, Executive Secretary, Indiana Supreme Court Disciplinary Commission.

This witch-hunt is an incredible waste of time & taxpayer dollars. It's also a classic example of bias. York is clearly the
one who lacks integrity for supporting his brother judge instead of supporting the constitution. Paul Ogden is one of the
most ethical people I know and it's criminal that he is being railroaded by this kangaroo-court.

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or
hateful.

You are legally responsible for what you post and your anonymity is not guaranteed.

Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content
are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.

No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are
relevant to the topic at hand, but please do not link to objectionable material.

We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag
a post simply because you disagree with it.